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The New India Assurance Co. Ltd. Vs. Jagdeep Riar and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtPunjab and Haryana High Court
Decided On
Judge
Reported inI(1986)ACC291
AppellantThe New India Assurance Co. Ltd.
RespondentJagdeep Riar and ors.
Cases ReferredNew India Assurance Co. Ltd. v. Jolly Engineers and Contractors
Excerpt:
.....as the insurer s. the return put-in by him with regard to the ownership of the car involved in the accident makes interesting reading. saroj, which is indeed a sad comment to make considering their status and social standing the obvious effort being to shift liability on the insurance company regardless of the untruths or falsehood it may entail. as is well-known in the case of old cars, there is also the element of depreciation which constantly brings down their prices. dhaliwal clearly impels the finding that it was not being used for the business of the insured at the time of the accident and on this account too, the insurance company must stand absolved from liability as the car was not being used for a purpose covered by the insurance policy. considering the strong and over-whelming..........the car pur-2888 came on to the crossing from the side of sector 37 that is, from the left of the jeep when this accident occurred, the photographs of the scene of the occurrence taken soon thereafter, exhibts p/1 to p/13. clearly indicate that it was the left front side of the car that bad hit into the jeep, which is by itself a telling circumstance pointing to the negligent driving of the car-driver. with the jeep travelling on the main road and that too on its correct side, no accident could have taken place if the car driver had taken the precaution of seeing that the crossing and road ahead was clear before proceeding to enter it had and at any rate, such damage on the front left side of the car could not have occurred unless the car had turned to its right and thereby got on to.....
Judgment:

S.S. Sodhi, J.

1. The claims for compensation here pertain to Dr. Manjit Singh Riar of the General Hospital, Chandigarh, who was killed when the jeep, he was travelling in, was involved in an accident with a car at the crossing on the road between sectors 36 and 37, Chandigarh. This happened no July 29, 1978 at about 11-30 A.M. It was the finding of the Tribunal that the accident had been caused entirely due to the rash and negligent driving of the car-driver. A sum of Rs. 15,000/- was awarded as compensation to the widow Jagdeep Riar and Rs. 60,000/- to the parents of the deceased.

2. The finding of negligence recorded against the car-driver warrants no interference in appeal. The evidence on record shows that the jeep was on the road between sectors 36 and 37 and was proceeding on its correct side of the road when the car PUR-2888 came on to the crossing from the side of Sector 37 that is, from the left of the jeep when this accident occurred, The photographs of the scene of the occurrence taken soon thereafter, exhibts P/1 to P/13. clearly indicate that it was the left front side of the car that bad hit into the jeep, which is by itself a telling circumstance pointing to the negligent driving of the car-driver. With the jeep travelling on the main road and that too on its correct side, no accident could have taken place if the car driver had taken the precaution of seeing that the crossing and road ahead was clear before proceeding to enter it had and at any rate, such damage on the front left side of the car could not have occurred unless the car had turned to its right and thereby got on to the correct path of the jeep. There is no explanation or record to explain away the obvious inference of negligence that these circumstances give rise to against the car-driver.

3. The case of the claimants rests upon the testimony of PW 4 Surinder Khanna, who deposed that he was travelling in the offending car when the accident occurred. There is no reason to doubt or question his presence or otherwise to in any manner create any dent in his veracity. He was subjected to lengthy cross-examination, but counsel could point to no flaw in his testimony. This witness categorically stated that on approaching the crossing, the car-driver neither slowed down nor blew the horn and that he paid no attention to the jeep approaching the crossing. It was, in fact, he who shouted to the car driver about the approaching jeep and then the car was taken to its right to avoid the jeep. It was also stated that the speed of the jeep was slow when the accident occurred. A significant part of the testimony of this witness is that the car-driver speed away after causing this accident. Evidence shows that he did not appear till long after the accident, that is only on August 16, 1978.

4. This testimony of PW 4 Surinder Khanna was corroborated by that of PW 7 Mr. S.K. Bhardwaj and PW 8. Lcbhman Das who were both travelling in the jeep along with Dr. Manjit Singh deceased. The account of the accident, as given by them, was consistent and wholly inconsonance with that narrated by P.W. 4 Surinder Singh Khanna. It would be pertinent to note that according to both PW 7 Mrs. S.K. Bhardwaj and PW 8 Lachhman Dass. Dr. Manjit Singh had to be dropped near the crossing and it was on that account that the jeep was at a slow speeded when this accident occurred. The jeep being at slow speed there cannot, therefore, be doubted.

5. The only evidence forth coming from the other side is the statement of the car-driver, RW 3 Mohinder Pal. What he had to say makes interesting reading. In the first instance, he stated that he stopped his car before entering the crossing and at that time the jeep was at a distance of only 8 to 10 feet. He then stated that it was the projecting stepney of the jeep which struck against this car while passing in front of it. If indeed the car had stopped as this driver suggests, no such impact should have occurred. At any rate, the impact should have been with the right front portion of the car and not with its left, as shown in the Photographs. On the face of it, this is version not worthy of belief. Mohinder Pal had also deposed that there was no one sitting in his car at that time meaning thereby that PW 4 Surinder Khanna had wrongly deposed that he was travelling in the car when the accident occurred. As mentioned earlier, there is no warrant for casting any doubt in the veracity of Surinder Khanna.

6. Keeping in view the manner and circumstances in which the accident occurred in the light of the evidence as discussed, there can be no manner of dobut that the Tribunal very rightly laid the blame for the accident wholly upon the car-driver. This finding must consequently be up-held and affirmed.

7. Turning now to the compensation payable, the claimants here are Mrs. Jagdeep Riar, the widow of the deceased as also his parents. It has come in evidence that the widow remarried after about 27 months of the death of her husband Dr. Manjit Singh. The date of remarriage being October 26,1980. The claim for compensation in respect of Mrs. Jagdeep Riar has thus to be confined to this period of 27 months only.

8. Mr. Hemant Kumar, counsel for the widow, sought to argue against any curtailment in the compensation payable to Jagdeep Riar on account of her remarriage, on the plea that being the widow she was entitled to compensation for loss to the estate suffered on account of the death of the deceased. He also sought to stress the point that the second marriage of Mrs. Jagdeep Riar had also been dissolved. The argument put-forth being that the bar to her claiming compensation, which arose on account of her remarriage. stood removed thereby. There is no substance in either of the contentions raised. There is no material on record to denote any loss to the estate arising on account of the death of Dr. Manjit Singh, there is no evidence of any savings or the accumulation of any other assets which could be taken to constitute any loss to the estate in the present case. As regards the second marriage having been dissolved, this can by no means be taken to revive the claim of the widow that based upon her dependency on here deceased husband. Such a concept is wholly unknown to law. It is significant to note in this behalf that there is no suggestion that Mr. Jagdeep Riar suffered any diminution in income by here remarriage after the death of her husband. In other words, all that loss of dependency until remarriage which, as mentioned earlier, took place about 27 months after the death of her husband.

9. Dr. Manjit Singh, who was a PCMS Class II Officer and according to PW 2 Rattan Singh, Assistant in the office of the District Family Welfare Chandigarh, his total emoluments were Rs. 1503/- P.M. The claimant PW 9 Mrs. Jagdeep Riar was also employed at a salary of Rs. 1,000/- per month. According to her, her husband used to give her about Rs. 1000/-per month after meeting his expenses. There is also evidence on record to suggest that the deceased had been giving money to his parents too. Taking an over-all view of the circumstances of the widow and the deceased, it is obvious that her dependency must have been in the region of Rs. 800/- to Rs. 1,000/- per month. On this basis compensation payable to her deserves to be assessed at Rs. 25,000/-.

10. As regards the parents of Dr. Manjit Singh deceased, there is the testimony of PW 10 Beant Singh the father that the deceased before his marriage used to pay them Rs. 250/- per month and after his marriage this amount was raised to Rs. 500/- per month, as his wife was also employed as a doctor. Children supporting their aged parents is not an unusual phenomenon and considering the fact that the father who was 60 years of age had retired on a meagre pension of Rs. 233/- per month, with a few acres of land being his only other source of income it is no wonder that some financial support was extended to him by his deceased son. It is true that the father had recently joined service with a private firm at a salary of Rs. 800/- per month, but this by its very nature must be taken to be temporary only. Considering the circumstance of the parents, that is, of the father and the 52 years' old mother and the deceased, keeping in view generally the principles laid down by the Full Bench in Lachhman Singh v. Gurmit Kaur 1979 PLR 1. the dependency deserves to be assessed at Rs. 4,000/- per annum with the multiplier being '14'. This would work out to Rs. 56,000/-. The difference between this sum and that awarded, namely ; Rs. 60,000/- is too small to warrant interference in appeal.

11. Now to consider is, upon whom lies the liability for payment of compensation.

12. Here is the strong disclaimer of liability by the Insurance Company on the ground that the policy of insurance lapsed as the insurer S.S. Saroj had transferred the car to Col. Dhaliwal much before the accident. A plea was also raised that the car was being used as a taxi, a use not covered by the policy and on this account too, the Insurance Company stood absolved from liability. The other defence taken by the Insurance Company was that the driver Mohinder Pal did not hold a valid driving licence and he was at any rate not permitted to drive the car, as he did here, as a paid employee. There is indeed must substance in the contentions raised.

13. In the matter of the ownership of the offending car, it deserves note that according to the claim application, the owner thereof was Col. K.S. Dhaliwal. Col. Dhaliwal admitted his ownership in the return filed by him. The Insurance Company had also taken a similar plea namely, that the car was owned by Col. Dhaliwal but it was denied that he had got this vehicle insured with them.

14. The insured of the offending car was Shri S.S. Saroj. The return put-in by him with regard to the ownership of the car involved in the accident makes interesting reading. In the first instance, it was said there that this car was, in theory, owned by him. but in fact it was possessed and operated by Col. Dhaliwal as it was Col. Dhaliwal who held his power of attorney and was thus competent to deal with all its affairs and to bear all the liabilities arising from the said car. Later it was stated that Col. Dhaliwal, in fact, be deemed to be its owner.

15. What emerges from the pleadings, therefore, is that the car PUR-2888 was owned and possessed by Col. Dhaliwal but the insured there of was Shri S.S. Saroj.

16. In evidence a different picture was sought to be projected by both Col. Dhaliwal and Shri S.S. Saroj. The effort there being to show that it was in fact Shri S.S. Saroj who was not only the insured but also the owner of the said car and that there existed the relationship of master and servant between him and the car driver-Mohinder Pal, to render him vicariously liable for the accident, which in turn, would make the Insurance Company liable for payment of compensation in this case.

17. Scant regard for truth or the sanctity of the oath is revealed in the testimony of RW 5 Col. Dhaliwal or RW 7 S.S. Saroj, which is indeed a sad comment to make considering their status and social standing The obvious effort being to shift liability on the Insurance Company regardless of the untruths or falsehood it may entail. This is indeed to be deprecated.

18. A reading of the evidence on record would show that the car was in the possession of Col. Dhaliwal Since the date when Shri S.S. Saroj exectued a power of attorney in his favour in respect of this car. This power of attorney was executed on June. 1976. After this date, both Col. Dhaliwal and Shri S.S. Saroj admitted that it was Col. Dhaliwal who saw to the repairs and Malntenance of the car and also paid all the taxes and insurance. Even repairs necessitated to the car, on account of the present accident, were paid for by Col. Dhaliwal. Further, on the date of the accident, RW 3 Mohinder Pal states that he had taken the car from the house of Col. Dhaliwal and returned it thereafter the accident. What is more, it was Col. Dhaliwal who paid him for his services on that day. So, Dhaliwal also went on to admit that it was from him that the police took possession of this car after the accident and later it was he who applied for and got back the car from the police on Supardari.

19. What clinches the mater here is the hiring of the car PUR-2888 to Brooke Bond Company. It has been come in the evidence of RW 6 Maharaj Kishan Bakshi, Deputy Area Sales Manager of Brooke Bond India Limited, Chandigarh that his car had been taken on hire by them from Col. Dhaliwal for use as a taxi at Rs. 1400/- per month this amount of Rs. 1400/-per month included the services of a driver to be provided by the owner of the car. Hire Charges, at his rate, he deposed, were paid to Col. Dhaliwal. He proved in this behalf the vouchers exhibits RR/1 and RR6/- relating to the period April. 1977 to July, 1978. Col. Dhaliwal when confronted with these vouchers admitted his signatures thereon, but stated that he might have affixed his signatures on revenue stamps on blank papers. This is indeed an extraordinary statement for a person of his qualifications and standing to make. He was admittedly a graduate and had retired as a Colonel in the Indian Army. It may be mentioned here that a specific note had to be recorded by the Tribunal that Col. Dhaliwal had not been giving answers in a straight-forward manner when he was in the witness box.

20. As regards the payment of Rs. 1400/- per month by Brooke Bond to Col. Dhaliwal, he tried to evade giving straight replies by saying that he did not remember if he had received these payments from Brooke Bond Company. Later, he added that if he had received this money, it was only for the Maltenance of the car and its other expenses. What is significant is that even as per Col. Dhaliwal's own statement, no part of the money received by him from the Brooke Bond Company was ever given by him to Shri S.S. Saroj.

21. Equally of unworthy of belief was the statement made by Shri S.S. Saroj in seeking to project himself as the owner of the offending car. According to him, he had handed over possession of the car to Col. Dhaliwal as he had been provided a government car upon his appointment as Chairman of the Export Corporation and he therefore no longer required the car. It is significant to take note of the fact here that he held this post only from March, 1976 to May, 1977. If the provision of the government car was the only reason, then his car should have been returned to him after May, 1977. but it continued to remain with Col. Dhaliwal. He sought to explain this by saying that he did not got back the car as he could not bear the expenses of its maintenance and also he was anxious about the safety of his son who may drive it rashly and negligently. If this was the reason, in the natural course of things, it is to be expected that the car would have been sold. When confronted with this, he tried to wriggle out of it by saying that he did not sell the car earlier as the price of cars were rising. As is well-known in the case of old cars, there is also the element of depreciation which constantly brings down their prices. What is of particular significance here is that there is no satisfactory explanation to account for the hire charges in respect of this car, which were being paid by Brooke Bond Company not being passed on to him by Col. Dhaliwal, if he was indeed the owner of the car and not Col. Dhaliwal.

22. Taking an over-all view of the circumstances and the evidence discussed, there can be no manner of doubt that the real owner of the car PUR-2888 was in fact of Col. Dhaliwal even though S.S. Saroj was shown to be its registered owner and injured. The position in law is now-settled as held in New India Assurance Co. Ltd. v. Jolly Engineers and Contractors (P) Ltd. Amritsar and Ors. PLR (1985) 2 Punjab and Haryana 126, '...that transfer of ownership of a motor vehicle puts an end to the liability of the insurance company with which it was insured, even though the insured continued to be shown as the registered owner of the vehicle in the records of the registering authority. In other words, the liability for the accident, besides that of the person actually causing it, is of the real owner whether or not he also happens to be the registered owner thereof...'. This being so, no liability can be fastened upon the Insurance company in the present case.

23. Further it is apparent that vicarious liability for the accident would be that of Col. Dhaliwal and not S.S. Saroj, despite the attempt of Mr. M.S. Grewal counsel for Col. Dhaliwal who argued to the contrary on the basis of the testimony of RW 7 S.S. Saroj in this behalf. According to S.S. Saroj, Mohinder Pal had been hired by him on the day of the accident from the taxi stand in Sector 9. It is pertinent to note that no such suggestion was made to the driver Mohinder Pal. Mohinder Pal had a different story to tell. According to him, he had not only taken the car from the house of Col. Dhaliwal and returned it there, but it was Col. Dhaliwal who had paid him for the work done on that day. As mentioned earlier, S.S. Saroj has shown himself to be a person who has little regard for truth and his testimony of this point too warrants no reliance. In other words, it must be taken that the relationship of servant and master of the driver Mohinder Singh was with Col. Dhaliwal and it was Col. Dhaliwal who must be held to be vicariously liable for the accident.

24. Further the fact that the car was being used as a taxi by being hired out as such to Brooke Bond by Col. Dhaliwal clearly impels the finding that it was not being used for the business of the insured at the time of the accident and on this account too, the Insurance Company must stand absolved from liability as the car was not being used for a purpose covered by the Insurance policy.

25. There are also grave doubts regarding the validity and genuineness of the driving licence produced on record by Mohinder Pal. This driving licence was admittedly for driving only a light transport vehicle. The word 'car' is specifically scored out. Mr. L.M. Suri, counsel for the Insurance Company also referred to the entries in the register of the Licensing Authority, Amritsar exhibits R/6, R/7 and R/8 also the application for renewal of the licence RW 3/1 with a view to draw an inference that all was not to above board in the manner in which the licence had been obtained. Considering the strong and over-whelming reasons already established to absolve the Insurance Company from having to bear any part of the burden of the compensation awarded, no useful purpose would be served by going into this matter now.

26. In the result, the compensation payable to the widow of Jagdeep Riar is hereby enhanced to Rs. 25,000/- while that payable to the parents of Ranjit Singh deceased is maintained at Rs. 60,000/-. The claimants shall, however, be entitled to the compensation awarded along with interest at the rate of 12 per cent per annum from the date of the application to the date of the payment of the amount awarded.

27. Liability for the compensation awarded shall be that of driver Mohinder Pal and Col. K.S. Dhaliwal.

28. The cross-objections filed by the claimant Jagdeep Riar as also the appeal as filed by the New India Assurance Company and the father Beant Singh are hereby accepted with costs while that filed by Col. K.S. Dhaliwal is hereby dismissed. Counsel fee Rs. 500/- (one set only).


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